General George Patton had one thing to say about planning vs action. His advice? "A good plan, violently executed now, is better than a perfect plan next week." Same thing is true in litigation.
To put it another way, procrastination can kill a good case. There's a lot of advantage to being proactive in litigating your case, but carefully and effectively so.
From new client intake to closing the file, a smart trial attorney is always planning for the next step, the next stage. If you devote some time and thought to planning early, there's less risk of getting caught by surprise. Starting at the beginning you should be planning what discovery you will need to do and in what order. Carefully rank the priority of your discovery and plot the sequence of it. Determine what discovery is really necessary and what can wait or even be ignored, based on the pro and con of each discovery effort or tool available. Pick low priority discovery and deliberately hold that back for use in response to your adversary's unexpected surprise move, if one comes. And if it doesn't come then it won't matter anyway.
But when you are caught by surprise, you are often better off by taking a quick and decisive response rather than dwelling on issues and plotting a response. That's why advance planning and ranking of the priority of your case flow can be extraordinarily useful.
A strong and quick response is seldom what your adversary is expecting when they deliver a strategic blow that they are counting on as a surprise. It has the advantage of confusing your adversary by making them think that perhaps their surprise move was not so much of a surprise after all. It can also make them think you have been waiting for them to make that move so that you could respond with your planned move which, of course, can have the double benefit of making your adversary wonder what's next?
There's a lot of advantage in being unpredictable in your litigation.
Of course, one could also argue that a bad plan is better than no plan at all too. Doing nothing is often worse than making the wrong move in the litigation chess match.
So, let's translate.
When you get paper discovery that you weren't expecting, consider firing something back that is equally unexpected by your adversary. When you are notified of a last minute new witness as your trial nears, quickly decide on a response and stick to it. Motion in limine? Quickly serving paper discovery or noticing up a discovery deposition, even though the discovery deadline has expired? Strategically ignoring it? Identifying a new fact witness of your own?
But don't overlook the value of strategically doing nothing in the face of an aggressive adversary. There is tremendous value in creating the uncertainty of a non-response or low key response. It exudes self-confidence. You can outwardly appear unflappable while inwardly seething with controlled anger. It is true what the deodorant commercials used to say: never let them see you sweat.
Whatever your response may be, hopefully you had it planned in advance and are able to quickly react when you need to. Procrastinating by failing to do advance planning in your case now can mean losing your case later. And no one likes losing.
